dissenting. The record in this appeal does not disclose the precise date of its commencement, but as early as 1893, and since then,including this appeal, it has been before this Court five times. It made its first appearance at Spring Term, 1895, and is reported in 116 N. C., 410. In that appeal, Justice Aveey delivered the opinion of the Court, which was concurred in by the entire Court, it being constituted as now, with the exception of Justice Douglas. It was held in that opinion that the defendant Morehead was personally liable for this debt — the Court using this language: (Syllabus) — “Where an executor executed a note in his representative capacity for money borrowed and used for the purpose of paying debts of the' testator, the estate is not liable, but the executor is personally liable therefor, and this is so notwithstanding the fact that the lender knew for what purpose the money was borrowed and how it was used. In such case the executor takes the risk of being reimbursed the amount of the note out of the estate on a final settlement.”
*284The next time it appeared in this Court was at September Term, 1897, and is reported in 121 N. C., 110. It appears that at June Term, ’1894, judgment was entered against the dtiendants Dulce and Green by default, they having made no defense to the plaintiffs action. At January Term, 1897, these defendants, Duke and Green, alleged that they were only sureties on tire note sued on, and moved to have the judgment rendered at June Term, 1894, corrected by inserting after their names the words “as sureties.'” The Court entertained this motion, found as a fact that they were only sureties, and ordered that the correction asked for be made. But upon appeal to this Court, it was held that the Court below (Judge Allen) had no power to find the facts and make the order amending the judgment.
The next time it was here was at February Term, 1898, and is reported in 122 N. C., 318. The opinion of the Court upon this appeal was delivered by Justice Montgomery., who, speaking for the full Court as now constituted, except Justice Clark, who did not sit in the case, said, (quoting from the syllabus) : “The promissory note of an administrator or executor, as such, founded upon tire consideration of forbearance or the possession of assets will hind him in his individual capacity; hence, whore an executrix, as such, executed a new note to a bank in consideration of its taking up and paying the old note, she is individually liable thereon.” The Court further holds in this opinion (on p. 324), as follows: “In our case there was constant forbearance on tire part of the plaintiff, and there were assets in the hands of the executrix, at the time of the execution of the note, and at the time of the trial.” Upon the trial of the case from which this appeal was taken (TimberlaJce, /.), the Court gave judgment for the defendant Morehead, holding that she was not personally liable for anything on account of the note sued on. To this *285the plaintiff excepted. Tip on the issues as tendered and found, the plaintiff tendered the following judgment, and requested the Court to sign, it. But the Court declined to sign this judgment, and signed the judgment in favor of the defendant Morehead.
Judgment offered by the plaintiff: “In this action, upon the issues submitted, the jury having found that the note was understood and intended to be made by the. defendant Mrs. L. L. Morehead in her representative capacity, and that the provision that she should not be personally bound was not omitted by mistake, it is now adjudged that in accordance with the opinion of the Supreme Court filed in this action, the feme defendant is answerable in her individual capacity, and that the plaintiff, Morehead Banking Co., recover of Mrs. L. L. Morehead individually the sum of $5,000, with interest at 8 per cent from September 19, 1893, and the costs of this action to be taxed by the Clerk.” To the refusal of the Court to sign this judgment, the defendants Duke and Green excepted and appealed. And upon this appeal (122 N. C., 318) the Court held that there was error in the Court’s signing the judgment it did sign, discharging the defendant Morehead from personal liability. It also held (on pp. 325 and 320), that the Court should have signed the judgment tendered by the plaintiff and quoted above, and that it committed error in not doing so.
The next time it was here was upon a petition to rehear the opinion of February Term, 1898, (122 N. C., 318). This petition was considered at February Team, 1899, and reported in 124 N. C., 622. In that opinion it is said: “There being-no disputed facts in this case, it becomes a question; of law for the Court, and upon the. undisputed facts, the Court should have directed'a personal judgment to be entered against the defendant Morehead. As that judgment should have been *286entered at the trial, it will be so entered upon this opinion being certified to the Superior Court of Durham County.” That is, that the judgment quoted above should -be entered upon the opinion in the petition to- rehear’ being certified to the Superior Court of Durham County. And as the opinion on the appeal (122 N. C., 325), and the opinion on the petition to rehear (124 N. C., 622), both said that that judgment should have been signed, and the last opinion saying that it should be signed upon the opinion of this Court being certified to the Superior Court, it was reasonable to suppose that would be the last of this case in this Court- But it is here again, and a majority of the Court think it is properly here.
This time it comes here on the application, of the defendant Morehead to have the matter reopened, that she may have an opportunity of showing that Duke and Green are not her sureties, but that they are principals. This motion is made upon her affidavit stating that she is advised and believes that the. defendant Duke purchased the judgment in 1895, and had it assigned to one Pugh for his use; that she never requested either Duke or Green to sign said note as her surety; that they signed the same of their own volition, and, therefore, are not her sureties. Green is dead, but Duke files an affidavit in which he states that he did purchase .the judgment by giving his individual note for the same, which he has not ]iaid; that he was forced to do this to prevent his property from being sold under said judgment; but he denies the allegation that he was not solicited to sign said note as her suerty, and alleges that he was solicited to do so by Mr. Avery, a near relation and friend of the defendant More head. In addition to the defendant Duke’s affidavit, he offers the evidence of the defendant Morehead, given on the trial of the case, and stated -in the case on appeal as follows: “Mrs. Morehead. — Don’t know what bank held Exhibit ‘A,’ *287(Exhibit ‘A’ is the note held by the Commercial Bank of New York, given by Eugene Morehead, Lucius Green and B. L. Duke), when it fell due, I ascertained the fact through Mr. Morgan, Cashier of the plaintiff bank. Mr. Morgan informed me that the note was held by the Commercial National Bank of New York, and that the same was due. I made an agreement with Mr. Morgan, cashier of the plaintiff bank, relative to this note, . I gave for this $6,000 note a note of the estate of Eugene Morehead, with B. L. Duke and Lucius Green as sureties, for $5,000, to The Morehead Banking Company, which note is here introduced into evidence, and marked Exhibit’ ‘D.’ ” The italics in the above quotation from Mrs. Morehead’s evidence aré mine. ■
The Court below says: “Having carefully examined the affidavits, the Court- finds that the amended answer of Lucy L. Morehead is based upon a meritorious defense, inasmuch as she desires to submit an issue to a jury as to whether she !s a co-principal with the other defendants. The presiding Judge is willing to exercise his discretion and permit said amended answer to be filed, but he is of the opinion' that he has no power now, after issues found- at a prior term, and under the decision of the Supreme Court. The motion is denied upon the want of power' solely.”
And the opinion of the Court at this term says: “If a new trial could be ordered by Hie Superior-Court'after' a final decision in the Supreme Court, surely such a motion as the one made in this case ought to have been granted. Error.”
Whether the defendant Duke has become -the equitable owner of the judgment or not does not affect the status of the defendant Morehead. She stands now just as she did before such purchase. If she was principal, and Duke and Green sureties, before this purchase, she is so now. If she and Duke and Green were co-principals before, they are so now. *288And so far as her liability is concerned, it makes no* difference who is the owner of the judgment. So I am unable to see the merits of the proposed amended answer, so> far as it relates to tire ownership of the judgment. As to' whether Duke and Green are co-principals with the defendant More-head, or only sureties, we have this state of facts presented by the'record: The affidavit of defendant Morehead, upon which this motion is founded, saying that Duke and Green are co-principals and not sureties; and we have the affidavit of defendant Duke, denying that he is a principal, and alleging that he is only a surety to' the note; and, in addition to these affidavits, we have the sworn statement — tire evidence of Mrs. Morehead on the trial — in which she says: “I game for the $6,000 note a note of the estate of Eugene Morehead, until B. L. Duke and Iaicvws Green as swrebies, for $5,000, to The Morehead Banking Company,” — the note sued on. Upon this state of facts the court below found merits in the defendant’s motion. And the opinion of this Court upon this state of facts says that if the Court can malee such an order it surely should have been done in this case, and finds error in the ruling of the Court below for not allowing the motion.
We see things differently. I must say that from these facts I am not impressed with the merits of the motion. It is said in the opinión of the Court that “she had contested her individual liability on the note, and the judgment of the Superior Court was in her favor. There was no need then on her part, at the time of the rendition of judgment in the Superior Court, to make a motion to- have the ultimate rights between Green and Duke and herself determined. She, at the first moment, after her personal liability on the note had been fixed by judicial decree, desired, not to change or modify the decision of the Supreme Court, but simply to have the rights and obligations of each of the defendants * * * settled *289among themselves.” The judgment at June Team, 1897, shows that by the consent of Mrs. Moretead it was rendered against her as executrix of Eugene Moretead, as well 'as against Duke and Green. And she testified that the estate of Eugene Moretead would pay about oned-hird of its liabilities. The judgment is now as it was then, against all three, except that defendant Moretead is now held to be personally liable.
We may not understand this argument of the Court, but as we understand it, it is that when the estate of Eugene More-head was liable, but not Mrs. Marehead, it made no difference whether she was principal and Duke and Green were sureties, or not. Or, in other words, she was willing that this question might be decided upon her evidence, when she swore that she gave "the note, and Dulce and Green were sureties;” if the estate alone is liable. But, if she is to be held personally liable, then Duke and Green are principals. It does not seem to me that such reasoning as this is sound,*and I can not adopt it. But it should be remembered that it was held at Spring-Term, 1895, (116 N. C., 410), that Mrs. Morehead was personally liable, and she has had ever since then toi make this defense, and the case has been tried three times since that decision. And it seems to me that if she had any such defense as this, it has been within her personal knowledge and should have been made before there was a final determination of the case, upon the pleadings existing for six or seven years, and the facts elicited on so many trials.
But was the Judge not correct when, he said he had no-power to make the order? It is conceded in the opinion of the Court that the Superior Court has no power to disobey' the judgment of the Supreme Court, and this is sustained by a great number of authorities. But as this is conceded in the-opinion of the Court, I feel that it is not necessary to- cite *290.authorities. That when it was said in the opinion (122 N. C., 325), that the judgment tendered by plaintiff:, making the defendant Morehead personally liable, should have been ■signed by the Court, and that it was error not to do so-, and when it was again said on tifie rehearing (124 N. C., 622), that this judgment should have been signed, and that as it .should have been signed at the trial, it should be. signed upon the opinion of this Court, being certified to the Superior Court, it would seem, as I have already said, that this would be the end of the case in this Court.
But the defendant Morehead says that judgment has been signed and she does not complain of that, and does, not ask to set aside or modify it. Is this not arguing in a circle? If this is the end of the matter, why not let it be the end ? If it is the end, how can anything further be done ? If no other judgment is to be rendered, why make the motion, to. file an ■additional answer ? * It seems to me that these interrogatories .and any truthful answer that can be given to them, show the absurdity of the motion to be allowed to file a, new answer.
It is taught in the horn books of the law that there must be an end to' litigation sometime, and this motion looks to me like trifling with the Court. Black on Judgments, vol. 2, par. 500, is as follows: “That the solemn and deliberate sentence of the law, pronounced by its appointed organs upon a disputed fact or state of facts, should be regarded as a final and conclusive determination of the question litigated, and should forever set the controversy at rest, is a rule common -.to all civilized systems of jurisprudence. But it is more than :a mere rule of law. It is more even than an important principle of public policy. It is not too much to. say that this maxim is a fundamental conception in the organization of every jural society. ' Eor unless every judgment should at some point become final, and have the quality of establishing *291its contents as irrefragable truth, litigation would become interminable, the rights of parties would be involved in endless confusion, the courts stripped of their most efficient power' would become little more than advisory bodies, and this the most important function of government — that of ascertaining and enforcing rights — would go unfilled.”
This doctrine is held by our own Court in an unbroken current of opinions, and by eveüy Court whose opinions I have-consulted ; and I do not believe, any opinion can be found to the contrary. Shehan v. Malone, 12 N. C., 59; In re Griffin, 98 N. C., 225; Dobson v. Simonton, 100 N. C., 56; Calvert v. Peebles, 82 N. C., 334. The fact that there is a judgment against the defendant Morehead as well as against Duke and Green, does not preclude her from showing that she is only a surety to the debt or that Duke and Green are co-principals with her, if such is the fact. But as this was not shown while the action was pending and before final judgment, it can-only be shown in another action brought for that purpose. 2 Black on Judgnents, par. 599; 1 Freeman on Judgments, par. 158. The same is true with regard to our own reported cases, for contribution among joint debtors, whether sureties or principals. I do not believe a single case can be found to the contrary.
The opinion of the Court is put on Black v. Black, 111 N. C. 300. I do not think this case justifies the opinion. It is not in harmony with Shehan v. Wilson and Calvert v. Peebles, supra, and other cases. But I think there is quite a difference between giving a new trial upon newly discovered evidence — a party’s last chance — and allowing a defendant after final judgment to file a new answer, and raise new issues not raised or tried in the action while pending. Facts and issues must be properly raised and tried in an orderly way, and this can not be done in a -suit after it is ended. The *292right of contribution between co-obligors upon a- note usually arises after the co-obligor has paid the debt, and if it arises before he does this, it must be an exception to the general rule, and no such exception is presented in this appeal. In my opinion the judgment should be affirmed..
Faibcloth, O. J., also dissents.